0120090301
01-30-2009
Venugopal S. Reddiar, Complainant, v. Dr. James B. Peake, Secretary, Department of Veterans Affairs, Agency.
Venugopal S. Reddiar,
Complainant,
v.
Dr. James B. Peake,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120090301
Agency No. 200K-0584-2003101992
DECISION
Complainant filed a timely appeal with this Commission from a letter of
determination by the agency dated July 23, 2008, finding that it was in
compliance with the terms of the November 19, 2004 settlement agreement.
See 29 C.F.R. � 1614.402; 29 C.F.R. � 1614.504(b); and 29 C.F.R. �
1614.405.
The November 19, 2004 settlement agreement provided, in pertinent part,
that:
1. Agency offers and Complainant agrees to accept an Ombudsman to
investigate only complaints made by patients, patient's families or
co-workers against the complainant. The Ombudsman will be granted
authority to investigate and make recommendations regarding the
complaints. The establishment of this role does not relinquish the
complainant's responsibility for discussing appropriate matters with
his supervisory chain of command. Both parties have identified the
Ombudsman will be [named physician].1
The record reflects that P1 served as an Ombudsman until July 2007,
when he was relocated to a different facility and a new replacement was
selected in September 2007. Complainant did not notify the EEO Director
in writing of the alleged breach until he sent the letter dated May 21,
2008, alleging that on September 20, 2007, the Chief of Staff appointed
a named physician (P2) as the new Ombudsman. Specifically, complainant
alleged that the Chief breached the agreement when he "ignored the
Settlement Agreement term to appoint an Ombudsman who is acceptable to
both parties." Complainant also alleged that the agency breached the
agreement when, on April 30, 2008, he learned that a named physician (P3)
received complaints from patients about his care but did not "first submit
the alleged complaints to an Ombudsman, as required by the Settlement
Agreement." Complainant alleged that P3's decision to investigate
patient complaints about his care was a violation of the agreement.
The Commission has held that where an individual bargains for a position
without any specific terms as to the length of service, it would be
improper to interpret the reasonable intentions of the parties to include
employment in that position ad infinitum. See Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Papac
v. Department of Veterans Affairs, EEOC Request No. 05910808 (December 12,
1991); see also Parker v. Department of Defense, EEOC Request No. 05910576
(August 30, 1991). In the instant case, the settlement agreement was
signed in November 2004, and complied with fully until the person
originally appointed as Ombudsman transferred to another facility.
Complainant raised allegations of a breach approximately two years and
six months after the agreement was signed. Under these circumstances,
the Commission finds there is no breach.2
Accordingly, the agency's finding of no breach of the instant settlement
agreement is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, DC 20013. In the absence of a legible postmark, the request
to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0408)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time
limits as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 30, 2009
__________________
Date
1 The settlement agreement also provides for the agency to give
complainant a revised performance appraisal for the rating period of
February 24, 2002 to February 24, 2003; provide complainant with the
proficiency evaluation criteria for all providers; pay complainant's
attorney in the sum of $1,700.00 in attorney's fees; and provide a
positive letter of reference, at the request of complainant, if he
should decide to leave for any reason other than adverse action.
Those provisions are not at issue in the instant appeal.
2 Regarding complainant's allegation that the agency breached the
agreement when P3 investigated alleged patient complaints without the
benefit of a review by an Ombudsman, the agency advised complainant that
if he wished to pursue the claim, he should contact an EEO Counselor,
and that he could use the May 21, 2008 letter alleging breach to be his
initial EEO Counselor contact for these claims. After a careful review
of the record, the Commission finds the agency correctly determined
that complainant was raising subsequent acts of alleged discrimination
following the execution of the agreement. Such claims are to be treated
as separate complaints. See 29 C.F.R. � 1614.504(c).
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0120090301
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120090301